tions were given. No objection is made to the credibility of the witness, and, on the whole, we think that a new trial ought to be granted."

So, also Jessup v. Cook.(1) This was a rule to show cause why a new trial should not be had, on the ground that defendant had discovered new and important evidence since trial. It was an action of assumpsit; plea, general issue, and verdict for plaintiff. Boudinot, J.-" As at the trial both parties adduced evidence to this particular point, I think it would be introducing a new rule, and establishing an exceedingly bad precedent, to set aside the verdict and grant a new trial, because one party has since discovered evidence, which he thinks entitled to more weight than any which he had produced at the trial. The jury may very probably have thought, that all parol testimony ought to be disregarded, when set in opposition to the continued and deliberate acts of the defendant himself; and I cannot bring myself to dissent from this doctrine. If the law were established, according to the views of the defendant, not one verdict in ten would stand. Some corroborating evidence may always be found or made, and in deviating from the rules by which courts have heretofore been guided, the trial by jury would become the most precarious of all trials. I am therefore against the motion." Rule discharged.

In order to succeed in the application, it appears to be necessary, that the party should mention the witnesses by name, and what he expects to prove, and that either the witness himself should state on oath the evidence he can give, or that the party should add his own belief to the statement made by the witness. Thus, in Richardson v. Backus, (2) action of slander. Upon a writ of inquisition,

the jury assessed the plaintiff's damages at $600. After

(1) 1 Halst. 434.

(2) 1 Johns. Rep. 59.

notice of executing the writ of inquiry, and before the jury had actually assessed the damages, the defendant discovered material evidence, before unknown to him, and which, he was advised, would fully justify the speaking the words charged in the declaration. The affidavit further stated, that the evidence since discovered would prove the truth of the words spoken; but it did not mention the names of the witnesses, nor the particulars of what he expected to be able to prove by them. Per Curiam.-" We think that the affidavit of the defendant ought to have disclosed the names of his newly discovered witnesses, as well as what he expected to prove by them. This would serve for a check against the abuse of general affidavits, after a trial. Let the proceedings, therefore, be stayed until the first day of the next term, that the defendant may have an opportunity, if he thinks proper, to amend his affidavit."(1)

And in Shumway v. Fowler,(2) action of trespass on the case, for debauching the plaintiff's daughter, and a verdict found for the plaintiff for $1025. The plaintiff's daughter was a witness on the part of the plaintiff. Shepherd, for the defendant, moved to set aside the verdict, and for a new trial, on the ground of newly discovered evidence. He read affidavits, stating, that since the trial the defendant had discovered a material witness, who told the defendant's attorney, that before the connexion between the defendant and the plaintiff's daughter, he, the said A. B., had criminal connexion with her, and also informed him, that another young man had told him, that he had previously had connexion with the plaintiff's daughter; and that the defendant also expected to prove the same thing to have taken place between her and another person. The court having denied the motion, on the ground of discrediting the witness, conclude-"There is another objec

(1) Vide 3 Marshall, 166.

(2) 4 Johns. Rep. 425.

tion to the affidavit in this case. It states merely, that the persons mentioned had told the party what they could say. There can be no reliance on such declarations; nor could the persons, at the trial, be obliged to answer whether they ever had such criminal connexion with the daughter. The motion must be denied."

So, in Denn v. Morrell, and others, (1) in ejectment, and verdict and judgment for plaintiff. The defendants moved for a new trial, upon the ground of newly discovered evidence. The affidavit of Cannon, one of the defendants, set forth the particular facts, which the defendants expected to prove; and further, that upon a new trial, the deponent would be able to prove the facts upon which he relied, by Frederick Dibblee, who would testify that the lessor of the plaintiff had, at a certain period long since elapsed, executed a deed in his presence, either a quit claim or a release, (the witness could not remember which,) whereby all the interest of the lessor in the premises was conveyed to one Maria H. Williamson. That said deed was delivered in the presence of Dibblee, but had never been in the possession of the deponent, and as he was informed, and verily believed, it had never been in the possession of the other defendants, but had been lost or mislaid in the lifetime of the said Maria. Upon this state of facts, the court held, that the party moving for a new trial upon the ground of newly discovered evidence, was bound to produce the affidavit of the witness, from whom such evidence was to come, setting forth the facts, or show that such affidavits could not be obtained. In the present case (they said) there was no ground to suppose that Dibblee would give the testimony detailed in the affidavit, except from the belief of the deponent, and the application was therefore refused.

(1) 1 Hall's Rep. 382.

So, in Sheppard v. Sheppard.(1) Trespass, and verdict for the plaintiff. The defendant moved to set aside the verdict on three grounds. One was, the discovery of new and important evidence, not known to the defendant at the former trial. Ford, J.-"The newly discovered witness, (Irwin,) is to swear, as is said, that he told the plaintiffs there was an execution levied on the property before he gave them the bill of sale. The evidence of it is, that a Mr. Harman swears he has heard Irwin say so. Facts newly discovered, ought to be laid before the court in the shape of legal evidence, and not hearsay. Many men say things which they dare not confirm under oath. We ought to have more substantial ground for setting aside a verdict, than a hearsay. I do not know a case where it was ever allowed, but there are many to the contrary." A new trial was refused. (2)

2. The party applying on the ground of newly discovered evidence, must make his vigilance apparent, for if it is left even doubtful that he knew of the evidence, or that he might, but for negligence, have known and produced it, he will not succeed in his application.(3) This is a well settled and comprehensive rule, running through all the cases on applications of this kind, and entering essentially into the practice of all courts, proceeding on the principles of the common law. In equity new trials are awarded on different grounds.(4)

Thus, in an Anonymous case.(5) Per Curiam.-A new trial is never granted for want of evidence, whereof the party was apprized, and which he might have had at the trial.

(1) 5 Halst. 250.

(2) Et vide 1 S. C. Con. Rep. 69. 143. Evans v. Rogers, 2 Nott & M'Cord, 563.

(3) Vide "Surprise," supra, 174–180. (4) Vide 2 Atk. 319. 2 Ves. sen. 552.

(5) 6 Mod. 222.

Watson v. Sutton.(1) Debt against the marshal for an escape. At the trial a reddidit se, in discharge of the bail of the principal, and a committitur in execution to the marshal, were produced in evidence; and after verdict it was moved that it should be set aside, as the committitur was irregular; for the course of the court is, that where any one upon a render is charged in execution, there ought to be a notice thereof to the marshal, without which it were hard to charge him with escape; and the cause of giving such notice is by making an entry of the committitur in a book kept for that purpose by the marshal, who has an officer on purpose in the office to take notice of such entries, and it is not enough that the committitur be entered with the entering clerk. Gould, J., laid it down for a rule, that where a man has matter of defence, and knowing thereof goes to trial, and puts the plaintiff to the charge of proving his issue, he shall never after, in respect of that matter, have a new trial.(2)

Cooke v. Berry,(3) cited above. The plaintiff had neglected to produce a letter at the trial, thinking the defendant had put in a sham plea. The court held that "New trials are never granted upon the motion of a party, where it appears he might have produced and given material evidence at the trial, if it had not been his own default, because it would tend to introduce perjury, and there would never be an end of causes, if once a door was opened to this."

And in Gist v. Mason and others,(4) on a policy. The defendants moved for a new trial, to let them into new evidence; assigning, as the reason why this evidence was not offered at the trial, a presumption that the jury, of their own knowledge, must have taken notice of the fact.

(1) 12 Mod. 583.

(2) Et vide 12 Mod. 567. 1 Salk. 273.

(3) 1 Wils. 98. Supra, 196.

(4) 1 Term Rep. 84. Supra, 197.